Citation Nr: 0837181
Decision Date: 10/29/08 Archive Date: 11/05/08
DOCKET NO. 06-11 775 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri
THE ISSUES
1. Entitlement to an evaluation in excess of 20 percent
disabling for service-connected lumbosacral strain and
degenerative disc disease.
2. Entitlement to service connection for a left knee sprain,
to include as secondary to service-connected lumbosacral
strain and degenerative disc disease.
3. Entitlement to service connection for depression, to
include as secondary to service-connected lumbosacral strain
and degenerative disc disease.
4. Entitlement to a total disability rating for compensation
based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Jeffrey J. Bunten, Attorney-
at-Law
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
L. L. Mollan, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1978 to November
1978.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from an October 2004 RO decision, which
continued an evaluation of 20 percent disabling for
lumbosacral strain/degenerative disc disease and denied a
claim for entitlement to service connection for a left knee
sprain, to include as secondary to the service-connected
disability of lumbosacral strain/degenerative disc disease,
and a May 2006 RO decision, which denied a claim for
entitlement to service connection for depression, to include
as secondary to the service-connected disability of
lumbosacral strain/degenerative disc disease, and a claim for
entitlement to TDIU.
In September 2008, a Travel Board hearing was held before the
undersigned Veterans Law Judge at the St. Louis, Missouri RO.
A transcript of that proceeding has been associated with the
claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
After a thorough review of the veteran's claims folder, the
Board has determined that additional development is necessary
prior to the adjudication of the aforementioned claims.
With regards to the veteran's claim for an increased rating
for his service-connected lumbosacral strain and degenerative
disc disease, the Board acknowledges that the veteran
underwent VA examinations for his spine disability in April
2004, September 2004, and February 2006. At the April 2004
VA examination, the examiner noted that, when asked to reach
to his toes, the veteran's range of motion was 50 degrees
with a 10/10 on a pain scale. However, later, when asked to
lean over the exam table, his range of motion was 90 degrees.
His extension was recorded as 10 degrees, his left lateral
flexions as 20 degrees, his right lateral flexion as 10
degrees, his left lateral rotation as 10 degrees, and his
right lateral rotation as 26 degrees.
At the September 2004 VA examination, ranges of motion were
not recorded. When asked to flex and extend his lumbosacral
spine, it was noted that the veteran made slight movements
and then stated that he could not bend his back at all.
Similarly, he stated that he could not perform lateral
flexion on either side and could only perform minimal
rotation of 10 degrees on each side. It was noted that there
was no objective evidence of painful motion, spasm, weakness,
or tenderness and that symptoms were reported by the veteran.
The veteran did not describe radiation of pain into the lower
extremities.
At the February 2006 VA examination, it was noted that, when
asked to perform the range of motions, the veteran stated
that he could not try. After repeated explanations, the
veteran still expressed inability to go through the range of
motions for fear of precipitating pain. It was noted that
there was no objective evidence of painful motion, spasm,
weakness, or tenderness. With regards to radiculopathy, it
was noted that a December 2005 study was incomplete, due to
the veteran's inability to tolerate the EMG portion of the
test. The examiner at the February 2006 VA examination
further noted that radiculopathy cannot be excluded or
confirmed by electrophysiologic methods; clinically, it is
less likely than not that the veteran has radiculopathy.
With regards to the veteran's claim for service connection
for a left knee sprain, to include as secondary to service-
connected lumbosacral strain and degenerative disc disease,
the Board notes that the veteran indicated in his October
2004 notice of disagreement (NOD) that he injured his left
knee during jump school at the same time he injured his back.
At the September 2008 hearing, however, it appears that the
veteran may be indicating that he suffers from radiculopathy
of the left leg due to his service-connected lumbosacral
strain and degenerative disc disease. However, it is unclear
from the medical evidence of record whether or not the
veteran has radiculopathy of the left lower extremity.
In a July 2006 private treatment record, the veteran was
diagnosed with lumbar radiculopathy. See Advanced Pain
Clinic, Ltd. treatment record, July 2006. As mentioned
above, the examiner at the February 2006 VA examination noted
that radiculopathy cannot be excluded or confirmed by
electrophysiologic methods; clinically, it is less likely
than not that the veteran has radiculopathy. In a December
2005 VA treatment record, it was noted that a concentric
needle electrode study was only partially performed, due to
the veteran's inability to continue cooperation. It was
noted that the available findings were normal. The veteran
was noted as having mildly abnormal bilateral sural sensory
neuropathy with otherwise normal results. Radiculopathy
could not be evaluated.
The Board finds that the measurements regarding the veteran's
range of motion for his spine are critical in evaluating his
disability under 38 C.F.R. § 4.71a. The Board is sympathetic
to the veteran's contentions that he is simply unable to
perform such movements due to pain; however, it must be noted
that VA examiners have not identified objective clinical
findings that support the veteran's description as to the
severe nature of his disability. As the veteran's ranges of
motion were not recorded at the last 2 VA examinations, the
Board finds that one more attempt to determine the range of
motion of the veteran's lumbar spine must be made in order to
properly assess the current severity of the veteran's
service-connected lumbosacral strain and degenerative disc
disease disability. See Colvin v. Derwinski, 1 Vet. App.
171, 175 (1991). If the veteran is unable to participate in
any manner with the VA examination, this fact should be noted
and explained in detail by the VA examiner. In addition, the
examiner at this examination should attempt to determine
definitely whether or not the veteran experiences
radiculopathy of the lower extremities due to his service-
connected lumbosacral strain and degenerative disc disease
disability.
The Board cautions the veteran concerning his own
responsibility to cooperate with VA in these matters. The
United States Court of Appeals for Veterans Claims (Court)
has held that '[t]he duty to assist is not always a one-way
street. If a veteran wishes help, he cannot passively wait
for it in those circumstances where he may or should have
information that is essential in obtaining the putative
evidence.' Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).
The veteran's responsibility of cooperating in the
development of his claims includes cooperating during the
course of a VA examination.
The Board notes that the veteran was provided a VA
psychiatric examination in October 2005. Upon examination of
the veteran and review of the claims folder, the clinical
psychologist concluded that the veteran's depression is most
likely a result of chronic pain. However, he went on to
state that the etiology of any diagnosed depression cannot be
resolved without resorting to mere speculation, due to the
fact that the veteran has a history of an in-service back
injury and a post-service back injury, as well as medical
record notations of sources of pain beyond his service-
connected back condition. Finally, he concluded by stating
that, as there is no medically determined etiology for the
veteran's chronic pain, determining the etiology of the
veteran's depression is not possible without necessitating
medical speculation. The Court has held that medical
opinions, which are speculative, general or inconclusive in
nature, cannot support a claim. See Obert v. Brown, 5 Vet.
App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 462
(1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). As
such, the Board finds that a new VA examination must be
conducted in order to determine whether the veteran currently
has depression that has been caused or aggravated by his
active duty or his service-connected lumbosacral strain and
degenerative disc disease. See Colvin, 1 Vet. App. at 175
(if the medical evidence of record is insufficient, the Board
is free to supplement the record by seeking an advisory
opinion or ordering a medical examination).
The veteran indicated at the September 2008 Travel Board
hearing that he received psychiatric treatment at a VA
outpatient clinic in Atlanta. The claims folder contains no
evidence of such treatment. VA has an obligation under the
Veterans Claims Assistance Act (VCAA) to associate all
relevant records in VA's possession with the claims file of a
veteran. 38 C.F.R. § 3.159 (2007). Therefore, this issue
must be remanded in order to attempt to locate any
outstanding VA treatment records from the Atlanta facility.
In regards to the veteran's claim for entitlement to TDIU,
the Board finds this issue to be inextricably intertwined
with the other issues on appeal, specifically the veteran's
claim for an increased rating for his service-connected
lumbosacral strain and degenerative disc disease. See Harris
v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the Board
cannot fairly proceed in adjudicating this issue until any
outstanding matters with regard to the claims on appeal have
been resolved.
Accordingly, the case is REMANDED for the following action:
1. Obtain all of the veteran's medical
records from the VA outpatient clinic
in Atlanta. Specifically, any records
of psychiatric treatment the veteran
has undergone must be obtained.
2. Schedule the veteran for a VA
psychiatric examination. The claims
file should be provided to the
appropriate examiner for review, and
the examiner should note that it has
been reviewed.
After reviewing the file, the examiner
should render an opinion as to whether
the veteran currently has depression.
If so, an opinion should be provided as
to whether it is at least as likely as
not that the veteran's depression was
incurred in or aggravated by a disease
or injury in service. An opinion
should also be provided as to whether
it is at least as likely as not that
the veteran's depression was caused or
aggravated by a service-connected
disability, particularly the veteran's
service-connected lumbosacral strain
and degenerative disc disease.
It would be helpful if the examiner would
use the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50%),
"at least as likely as not" (meaning
likelihood of at least 50%), or "less
likely than not" or "unlikely" (meaning
that there is a less than 50%
likelihood).
The term "at least as likely as not"
does not mean "within the realm of
medical possibility." Rather, it
means that the weight of medical
evidence both for and against a
conclusion is so evenly divided that it
is as medically sound to find in favor
of that conclusion as it is to find
against it. The examiner should
provide a complete rationale for any
opinion provided.
3. Schedule the veteran for a VA
examination to determine the current
severity of his service-connected
lumbosacral strain and degenerative
disc disease. The claims folder must
be made available to the examiner and
pertinent documents therein should be
reviewed by the examiner. The examiner
must note in the examination report
that the claims folder was reviewed in
conjunction with the examination. All
necessary tests and studies should be
accomplished, and all clinical findings
should be reported in detail.
Specifically, the examiner should
report all ranges of motion of the
veteran's lumbosacral spine. If such
ranges are unable to be reported, the
examiner should opine as to whether the
veteran is legitimately unable to
perform any of the requested motions to
any degree due to physical limitations.
The examiner should also note whether
or not the veteran experiences
radiculopathy in his lower extremities,
specifically his left lower extremity.
4. Then, the RO/AMC should readjudicate
the claims. In particular, the RO
should review all the evidence that was
submitted since the August 2008
supplemental statement of the case
(SSOC). In the event that the claims
are not resolved to the satisfaction of
the veteran, he should be provided a
SSOC, which includes a summary of
additional evidence submitted, any
additional applicable laws and
regulations, and the reasons for the
decision. After the veteran has been
given the applicable time to submit
additional argument, the claims should
be returned to the Board for further
review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No further action is required of the veteran until further
notice. However, the Board takes this opportunity to advise
the veteran that the conduct of the efforts as directed in
this remand, as well as any other development deemed
necessary, is needed for a comprehensive and correct
adjudication of his claims. His cooperation in VA's efforts
to develop his claims, including reporting for any scheduled
VA examination, is both critical and appreciated. The
veteran is also advised that failure to report for any
scheduled examination may result in the denial of a claim.
See 38 C.F.R. § 3.655 (2007).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).